HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.23863 of 2013
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Hrusikesh Panda, aged about 20 years, S/o. Kishore Chandra Panda, resident of Nigam Nagar, 1st Line, P.O. Ankuli, P.S. B.N. Pur, Town & Dist. Ganjam.
...... Petitioner
-Versus-
State of Odisha and others ...... Opp. Parties
For Petitioner : Mr. S.K. Pradhan
For opp. parties : Mr. M.S. Sahoo
Addl. Standing Counsel
[For State-O.P. Nos.1 & 4]
M/s. S. Palit, A.K. Mahana,
A.Mishra, Miss. R. Tripathy
& A. Parija
[For O.P. No.2]
Mr. R.C. Mohanty
[For MCI-O.P.No.3]
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE I. MAHANTY
AND
THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA
Date of Judgment: 14.05.2014
B.N. Mahapatra, J. This writ petition has been filed by the petitioner for a direction
to the opposite parties to allot him a seat in MBBS Course on the basis of his rank in the State at the earliest.
2. Petitioner's case in a nutshell is that he appeared in the National Eligibility-cum-Entrance Test-UG 2013 (for short, "NEET") and qualified in the said examination securing 10362 rank in the NEET All 2 India Rank and 513 rank in the State (Odisha). Considering his rank, the petitioner was allotted the branch of BDS course in S.C.B. Medical College and Hospital, Cuttack on 23.07.2013. The final vacancy round counseling for MBBS/BDS candidates was held on 25.09.2013 and 26.09.2013. As per the NEET All India Rank of the petitioner, he appeared on 25.09.2013 in the final vacancy round counseling after depositing counseling fee of Rs.450/- towards document verification. One candidate, namely, Manisha Mohanty, Rank No.GE4477 in NEET All India Rank was allotted MBBS and her name appeared in the final consolidated seat allotment for medical (MBBS/BDS) as on 26.09.2013. Manisha Mohanty took spot admission in MBBS, 2013 course at AIIMS, Bhubaneswar on the very same day, i.e., 26.09.2013 thereby vacating the MBBS seat in S.C.B. Medical College and Hospital, Cuttack. Further, one Swayam Prakash Dash whose NEET All India Rank is 10353 and Odisha Rank is 512, i.e., just one above rank as compared to the petitioner (513) was allotted MBBS course in VSS Medical College, Burla. Thus, the petitioner securing 513 rank in Odisha is the next eligible candidate to get allotment in MBBS as one seat has fallen vacant on 26.09.2013 after said Manisha Mohanty joined in AIIMS, Bhubaneswar. The petitioner reliably learnt that one more seat in MBBS in M.K.C.G. Medical College, Berhampur has fallen vacant on 10.10.2013 as one of the students has resigned and discontinued the course. Therefore, at present, two seats in MBBS-2013 are available to be filled up.
3. The petitioner appeared in person and submitted that as per the final schedule for All India Quota (NEET) UG Counseling, 2013, the last 3 date up to which the students can be admitted against the vacancies arising due to any reason was on 30.09.2013. Therefore, the petitioner approached in person to opposite party No.2-OJEE-2013 on each day starting from 26.09.2013 to 30.09.2013 for allotting a vacant MBBS seat to him but in vain. The action of opposite party No.2 in not allotting one vacant MBBS seat to the petitioner, which had fallen vacant on 26.09.2013 itself, is absolutely illegal, arbitrary, and opposed to Articles 14 and 16 of the Constitution of India. No valid and cogent reason has been assigned by opposite party No.2 in not allotting the vacant MBBS seat to the petitioner.
It was submitted that in the 1st year theory classes of both MBBS and BDS are same. The difference is only in the practical classes. So far as the practical classes are concerned, it is more for MBBS course in comparison to BDS Course.
Concluding his argument, learned counsel for the petitioner submitted that the petitioner should not have been made to suffer for no fault of his own.
4. Mr. M.S. Sahoo, learned Additional Standing Counsel for the State-opposite party No.4 submitted that no MBBS admission can be made beyond 30th September of any year. Ms. Manisha Mohanty was admitted into MBBS Course on 27.07.2013 and she was issued with College Leaving Certificate (CLC) on 26.09.2013 on her request to study elsewhere. After the CLC was issued to Manisha Mohanty, the same was communicated to the Chairman, OJEE through FAX and post vide letter No.6979 dated 28.09.2013. In course of hearing, an affidavit was filed by the Dean and 4 Principal of S.C.B., Medical College-Prof. (Dr.) Prakash Chandra Mohapatra, wherein it has been stated that on 03.05.2014 a meeting was conducted among the Professors and Heads of the Departments of Anatomy, Physiology & Biochemistry to discuss regarding the possibility of transfer of a student from BDS course to MBBS course. In the proceeding of the meeting held on 03.05.2014, it has been stated that the syllabus of MBBS and BDS are different. In BDS syllabus, Physiology and Biochemistry constitute one paper whereas in MBBS there are separate papers. The teaching hours and depth of knowledge imparted to a BDS student is much less than a MBBS student. As per their syllabus, BDS students don't study the anatomy of extremities. They are not taught in detail regarding other systems except head and neck, as per their requirement. It would not be possible to organize extra classes for one BDS student to make up the course in a short period of time as the first professional MBBS examination will start in 1st week of July.
5. Mr. Palit, learned counsel appearing for opposite party No.2- OJEE submitted that due to short time, OJEE could not be held in respect of one seat about which the opposite party No.4 communicated to the Chairman, OJEE on 28.09.2013 through FAX.
6. Mr. R.C. Mohanty, learned counsel for the Medical Council of India submitted that no admission can be made to MBBS course after the cut-off date, i.e., 30th September, 2013. In support of his contention, he relied upon the decision of the Hon'ble Supreme Court in the case of Mridul Dhar (Minor) and another vs. Union of India and others, (2005) 2 SCC 65. 5 Placing reliance upon the judgment of the Hon'ble Supreme Court dated 30th August, 2013 in the case of Aneesh D. Lawande & Others vs. The State of Goa and others (Writ Petition (C) No.598 of 2013), Mr.Mohanty submitted that a seat cannot be carried forward to the next year.
7. On the rival contentions of the parties, the only question that arises for consideration by this Court is whether the petitioner is entitled to get admission in MBBS Course for the academic year 2013-14 after the cut- off date, i.e., 30th September, 2013.
8. On the rival contentions of the parties, the only question arises for consideration by this Court is whether the petitioner is entitled to take admission in MBBS course for the academic year 2013-14 after the cut-off date of the admission, i.e., 30th September, 2013.
9. At this juncture, it would be appropriate to refer to the judgment of the Hon'ble Supreme Court in the case of Asha vs. Pt. B.D. Sharma, University of Health Sciences and others, AIR 2012 SC 3396. The Hon'ble Supreme Court in the case of Asha (supra) after taking note of its earlier judgment in the case of Mriduldhar (minor and another) (supra) held as under:
"31. There is no doubt that 30th September is the cut- off date. The authorities cannot grant admission beyond the cut-off date which is specifically postulated. But where no fault is attributable to a candidate and she is denied admission for arbitrary reasons, should the cut-
off date be permitted to operate as a bar to admission to such students particularly when it would result in complete ruining of the professional career of a meritorious candidate, is the question we have to answer. Having recorded that the appellant is not at fault and she pursued her rights and remedies as 6 expeditiously as possible. We are of the considered view that the cut-off date cannot be used as a technical instrument or tool to deny admission to a meritorious students. The rule of merit stands completely defeated in the facts of the present case. The appellant was a candidate placed higher in the merit list. It cannot be disputed that candidates having merit much lower to her have already been given admission in the MBBS course. The appellant had attained 832 marks while the students who had attained 821, 792, 752, 740 and 731 marks have already been given admission in the ESM category in the MBBS course. It is not only unfortunate but apparently unfair that the appellant be denied admission. Though there can be rarest of rare cases or exceptional circumstances where the courts may have to mould the relief and make exception to the cut-off date of 30th September, but in those cases, the Court must first return a finding that no fault is attributable to the candidate, the candidate has pursued her rights and legal remedies expeditiously without any delay and that there is fault on the part of the authorities and apparent breach of some rules, regulations and principles in the process of selection and grant of admission. Where denial of admission violates the right to equality and equal treatment of the candidate, it would be completely unjust and unfair to deny such exceptional relief to the candidate. "
"36. Now, we shall proceed to answer the questions posed by us in the opening part of this judgment.
ANSWERS
(a) The rule of merit for preference of courses and colleges admits no exception. It is an absolute rule and all stakeholders and concerned authorities are required to follow this rule strictly and without demur.
(b) 30th September is undoubtedly the last date by which the admitted students should report to their respective colleges without fail. In the normal course, the admissions must close by holding of second counseling by 15th September of the relevant academic year (in terms of the decision of this Court in Priya Gupta (supra). Thereafter, only in very rare and exceptional cases of unequivocal discrimination or arbitrariness or pressing emergency, admission may be permissible but such power may preferably be exercised by the courts. Further, it will be in the rarest of rare cases and where the ends of justice would be subverted 7 or the process of law would stand frustrated that the courts would exercise their extraordinary jurisdiction of admitting candidates to the courses after the deadline of 30th September of the current academic year. This, however, can only be done if the conditions stated by this Court in the case of Priya Gupta (supra) and this judgment are found to be unexceptionally satisfied and the reasons therefor are recorded by the court of competent jurisdiction.
(c) & (d) Wherever the court finds that action of the authorities has been arbitrary, contrary to the judgments of this Court and violative of the Rules, regulations and conditions of the prospectus, causing prejudice to the rights of the students, the Court shall award compensation to such students as well as direct initiation of disciplinary action against the erring officers/officials. The court shall also ensure that the proceedings under the Contempt of Courts Act, 1971 are initiated against the erring authorities irrespective of their stature and empowerment.
Where the admissions given by the concerned authorities are found by the courts to be legally unsustainable and where there is no reason to permit the students to continue with the course, the mere fact that such students have put in a year or so into the academic course is not by itself a ground to permit them to continue with the course."
(Underlined for emphasis)
10. In the present case, the petitioner has not committed any fault. He was deprived of taking admission in MBBS Course against the vacant seat available for the academic year 2013-14 to which he was entitled to before the cut-off date due to laches on the part of opposite party- authorities in not holding the counselling for one vacant seat, which fell vacant in S.C.B. Medical College and Hospital, Cuttack on 26.9.2013, as one candidate, namely, Manisha Mohanty, took spot admission in MBBS Course at AIIMS, Bhubaneswar. One Swayam Prakash Dash, whose NEET All India Rank is 10353 and Odisha Rank is 512 i.e. just one rank above to 8 the petitioner (Rank No. 513), was allotted MBBS Course in V.S.S. Medical College, Burla. Thus, the petitioner securing 513 rank in Odisha is the next eligible candidate to get allotment in MBBS as one seat has fallen vacant on 26.09.2013 after Manisha Mohanty took admission in AIIMS, Bhubaneswar. Thus, the petitioner has become the victim of the circumstances which was beyond his control. Had the opposite parties, more particularly opposite party No. 2-OJEE, 2013 and opposite party No. 4-Dean and Principal, S.C.B. Medical College & Hospital, Cuttack acted with promptitude in filling up the vacant seat before the cut-off date, the petitioner would have certainly got admission in MBBS Course during the academic year, 2013-14 before the cut-off date, i.e., 30.09.2013. Knowing pretty well that a seat in MBBS course is very valuable, opposite party No.4 has not taken prompt action in communicating the Chairman, OJEE about vacancy of one seat in MBBS course after the CLC was issued to Manisha Mohanty on 26.09.2013, which fact intimated to the OJEE, 2013 on 28.09.2013, i.e., two days after the seat fell vacant. Similarly, OJEE, 2013 has not taken any step for holding the counselling before the cut-off date in respect of such vacant seat about which it was intimated on 28.09.2013. Further, the assertion of the petitioner that he approached the opposite party no. 2-OJEE, 2013 in person on each date for counselling starting from 26.09.2013 to 30.09.2013 for allotting a vacant seat to him was not denied by opposite party no. 2. When the petitioner failed to take admission in MBBS course against the vacant seat which arose before the cut-off date to which he is entitled to, he has filed the present writ petition 9 on 23.10.2013 seeking appropriate relief. Thus, the petitioner is not at fault and he is diligent in pursuing his rights and legal remedy.
11. The Hon'ble Supreme Court in the case of Medical Council of India Vs. Manas Ranjan Behera and others, (2010) 1 SCC 173 noticing that 12 students who were eligible and because of unprecedented situation they could not secure admission within the prescribed time limit condoned the delay in giving admission to them as one time measure.
12. It may be noted that a meritorious student if not given admission in a medical course to which he is entitled to for no fault of his and the seat remains vacant, it is a national waste as it will not only result in complete ruining the professional career of a meritorious student but also make the country to lose a qualified doctor. Needless to say that medical education is a national wealth and the country is in bare need of Doctors.
13. For the reasons stated above, we are of the considered view that the petitioner is entitled to get the relief as prayed for in view of the judgment of the Hon'ble Supreme Court in the case of Asha (supra). Therefore, in the peculiar and extra-ordinary facts of the case, we feel in the interest of justice the petitioner deserves admission in MBBS course for the academic year 2013-14. Accordingly, we direct opposite party- authorities, more particularly opposite party Nos. 2 and 4 to give admission to the petitioner against the available vacant seat in MBBS course at S.C.B. Medical College and Hospital, Cuttack. However, the petitioner's right to appear in the examination shall be in accordance with the Examination Rules/Regulations and if the petitioner does not meet the 10 attendance requirement, he shall be permitted to repeat the academic year. This order is being passed taking into consideration the peculiar facts and circumstances of the case.
14. The principle decided by the Hon'ble Supreme Court in the case of Mriduldhar (minor and another) (supra) has no application to the facts of the present case in view of the latter judgment of the Hon'ble Supreme Court in the case of Asha (supra). Similarly, the judgment of the Hon'ble Supreme Court dated August 30, 2013 in the case of Aneesh D. Lawande and others -v- The State of Goa and others (W.P. (Civil) No. 598 of 2013) relied upon by Mr.R.C. Mohanty, learned counsel appearing for the Medical Council of India-opposite party No. 3 is of no assistance since in the present case, no seat is carried forward to the next year and our above direction would not affect the other meritorious candidates who would be aspirants to get admission next year, i.e., 2014-15..
15. In the result, the writ petition is allowed with the aforesaid observations and directions, but without any order as to costs.
Urgent certified copy of this judgment be granted on proper application in course of the day and free copies thereof be handed over to learned counsel for opposite parties for necessary compliance.
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B.N.Mahapatra,J.
I.Mahanty, J. I agree.
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I.Mahanty, J.
Orissa High Court, Cuttack
Dated 14th May, 2014/ss/skj/bks